Standing

February 19th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Good Law Project and 3 MPs) v SoS for Health and Social,Care (2021) EWHC 346 (Admin) Chamberlain J in procurement proceedings granted standing to the first claimant and refused it to the other three. At paragraphs 77-108 he stated general principles as regards standing for judicial review as follows :-

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Judicial Review and Cuts

February 15th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

On systemic claims, whether a decision (to cut funding on EHCPs) gives rise to an unacceptable risk of unlawful outcomes, and on whether a strategic statutory duty (under Section 27 of the Children and Families Act 2014) to keep provision “under review” is triggered, see R (M and IR) v Waltham Forest LBC (2021) EWHC 281 (Admin).

 

Mandatory Injunctions

February 12th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Mohammad v SSHD (2021) EWHC 240 (Admin) Chamberlain J stated principles in relation to mandatory injunctions against public authorities. They include :-

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Statutory Interpretation

January 13th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Privacy International v Investigatory Powers Tribunal (2021) EWHC 27 ( Admin ) Bean LJ stated relevant principles of statutory interpretation as follows :-

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Without Prejudice

January 11th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Motorola v Hytera (2021) CA Civ 11 concerned when without prejudice privilege is displaced by the “unambiguous impropriety” exception. Males LJ reviewed the authorities at paras 24-56 inclusive, and states at para 57: “From this review of the cases I would conclude that the courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, have jealously guarded any incursion into or erosion of the without prejudice rule, and have carefully scrutinised evidence which is asserted to justify an exception to the rule.” Although the “unambiguous impropriety” exception has been recognised, the cases in which it has been applied have been “truly exceptional”.

 

Unjust Enrichment

December 24th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Surrey County Council v NHS Lincolnshire CGC (2020) EWHC 3550 (QB) concerns a restitution claim by a local authority against an NHS body in the context of healthcare and community care services. Issues include whether the claim is a public law claim that should be brought by judicial review or can be brought as a private law claim( paras 72-84), limitation ( paras 85-91), a novel category of unjust enrichment ( paras 92-121), and change of position defence ( paras 122-129).

 

Liability for Accident in Public Park

December 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.

 

 

 

Judicial Review

December 1st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

There is increasing concern about the need for appropriate procedural rigour in judicial review cases. In R (Dolan) v SoS for Health (2020) EWCA Civ 1605 the Court of Appeal says, at para 117 that procedural rigour is important for justice to be done and for fairness to all concerned.

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S 114 – (3) PWLB terms

November 26th, 2020 by Peter Oldham QC in Capital Finance and Companies, General, Judicial Control, Liability and Litigation, Local Authority Powers

Unlinked to any particular LA’s situation, the Government consulted earlier this year on revised Public Works Loan Board lending terms and guidance. The background was LAs’ involvement in the commercial property market as a means of increasing income, which had been the subject of much controversy over the years.  The extreme financial pressures now faced by LAs as a result of the pandemic brings this issue into particular focus. Yesterday (25th November 2020) the Treasury published its response to the consultation, and it can be found here.

As the consultation response explains:-

“In recent years a minority of local authorities have borrowed substantial sums from the PWLB to buy investment property with the primary aim of generating yield. The National Audit Office estimates that LAs bought £6.6bn of investment property between 2016-17 and 2018-19. The government is clear that this is not an appropriate use of PWLB loans.”

The response explains that from today, 26th November 2020, the PWLB (i.e. the Treasury) will apply a new approach to deciding whether to lend for a proposed project.  These include the following:-

“b) the PWLB will ask the finance director of the LA to confirm that there is no intention to buy investment assets primarily for yield at any point in the next three years. This assessment is based on the finance director’s professional interpretation of guidance issued alongside these lending terms.

c) It isn’t possible to reliably link particular loans to specific spending, so this restriction applies on a ‘whole plan’ basis – meaning that the PWLB will not lend to an LA that plans to buy investment assets primarily for yield anywhere in their capital plans, regardless of whether the transaction would notionally be financed from a source other than the PWLB.”

The response also announces that, now a workable system is in place to ensure that loans will “not be diverted into debt-for-yield activity”, PWLB lending rates from today for new Standard Rate and Certainty Rate loans will be reduced by 1%.

Peter Oldham QC

 

S 114 – (2) Croydon

November 26th, 2020 by Peter Oldham QC in Capital Finance and Companies, General, Judicial Control, Liability and Litigation, Local Authority Powers

On 11th November 2020, Croydon LBC’s s 151 officer wrote a report to the authority under s 114(3) of the LGFA 1988, which can be found here.  For the purposes of this series of posts, the interesting point is that the Council obtained clarification from CIPFA of the meaning of its guidance of June 2020, which I discussed in my earlier post today.

The s 151 officer’s report explains that in early September she issued a draft s 114 report to the Leader and others in the Council, and also sent it to the MHCLG, the LGA and the Council’s external auditors.  She explains that she did not issue a formal s 114 notice “as the conversations with MHCLG were ongoing”.  As we have seen, this was in accordance with the CIPFA guidance of June.

She reports that, on 6th November:-

“the Chief Executive of CIPFA clarified in a letter to Croydon Council that the modified guidance regarding the issue of S114 notices was as a direct result of costs incurred by the Covid19 pandemic. Croydon’s financial pressures are not all related to the pandemic.”

Stopping there, this clarifies the purpose of the CIPFA guidance of June 2020: that it was directed to pressures arising as a result of Covid. It was not meant to apply to situations where the financial crisis arose for other reasons, or other reasons as well.

The S 151 officer went on to explain that the financial pressures in Croydon also arose because of a misidentification of in-year savings as “new” savings; a greater risk of a group company, Brick by Brick, not making interest and dividend payments; a failure to identify medium term budget savings; and the continued incurring of non-essential costs. She also referred to the October report in the public interest under the Local Audit and Accountability Act 2014 from the Council’s auditors (s 24, Sched 7), which had detailed its deteriorating financial resilience.  She said:-

“I am not seeing the necessary level of pace, urgency or radical options to be presented to members to take decisions upon to give me confidence that the Council can make the level of savings required to deliver a balance budget in year, without external support in the form of a capitalisation direction.”

Peter Oldham QC